Words
and Power
The
first editions of Shakespeare’s plays are so full of misprints,
misspellings, obscurities, and puzzles that they have kept scholars
and editors guessing for centuries. Emending the text, in the hope
of recovering the author’s meaning, has proved a daunting task.
When should an editor stick with the first text, and when should
he try to improve on it?
Samuel
Johnson, a common-sense conservative editor, preferred simplicity
to cleverness: "I always suspect that reading to be right which
requires many words to prove it wrong."
You
might say the same of constitutional law. Ingenious justices, politicians,
and partisans have found many unsuspected meanings in the U.S. Constitution,
which have required them to use "many words" to prove
that the Constitution really doesn’t mean what it seems to mean,
or what people have traditionally taken it to mean. Sometimes the
Supreme Court tells us it means the very opposite!
How
can this be? Well, modern jurisprudence is a verbal form of alchemy.
The "experts" can pick out a couple of phrases from widely
separated clauses of the Constitution, combine them, find "penumbras"
and "emanations" in them, appeal to precedents laid down
by earlier "experts," and presto! Black means white, and
day means night. And in the end, the government is more powerful – and
lawless – than before.
An
innocent reader of the Constitution might think that the United
States should wage war only if Congress declares war. But ingenious
interpretations have enabled the U.S. Government to make war many
times without a formal declaration. Congress hasn’t declared war
since December 8, 1941, the day after Pearl Harbor. Well may you
ask whether we even live under the Constitution anymore.
Now
the United States is at war without a declaration yet again. We
may never see another declaration of war; but we’ll certainly see
plenty of war. Isn’t this at least ... odd?
Another
legal problem has arisen with the capture of enemy troops in Afghanistan
and their transfer to the American naval base at Guantanamo Bay,
Cuba. Should they be treated as prisoners of war under the Geneva
Convention?
Our
government (it’s "ours" in the sense that it controls
us; I mean no implication that we control it) says the captives
are "killers," not properly prisoners of war, so the Geneva
rules don’t apply. You might think all combat soldiers are killers,
but it seems U.S. soldiers are, in the words of Defense Secretary
Donald Rumsfeld, "fine young men and women who are serving
this country." No fine young men (and certainly not women)
will be found among those confined at Guantanamo Bay.
Common
sense might suggest that anyone captured in war is a prisoner of
war. But our government wants to question them beyond the limits
authorized by the Geneva rules, so it has redefined them as "killers."
European governments and public opinion find this legal maneuver
specious and objectionable – a verbal manipulation of international
law.
Our
government offers the argument that the "killers" weren’t
wearing uniforms or observing the laws of war themselves. So the
enemy is bound by the laws of war even when the United States hasn’t
declared war!
Why
not go all the way? Why not try the prisoners for "war crimes,"
specifically the crime of fighting back when the United States attacks?
I
don’t have a copy of the Geneva Convention handy. (Do you?) All
I know is what I read in the papers. But I know my government, and
I know when it’s up to its old tricks. With the aid of its clever
lawyers, it can make any law mean whatever it wants it to mean.
In
that case, why bother having any law? The point is not just the
treatment of the present captives. The real point is that a government
that can act lawlessly abroad can also act lawlessly at home. And
every violation of the rule of law today will furnish precedents
for further violations in the future. Logic says it; experience
proves it.
But
it’s no use issuing dire predictions and warnings when people can’t
even see what has already happened. To those who feared that the
New Deal had revolutionary tendencies that might destroy the Constitution,
the writer Garet Garrett replied that the revolution had already
occurred.
He
was right. The Constitution is long gone, and we are living in the
advanced stages of the revolution that destroyed it.
February
13, 2002
Joe Sobran's Biography.
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